VIRGINIA APPELLATE NEWS & ANALYSIS
AT THE FIVE-YEAR MARK[Posted January 14, 2010] This is a special day for me; I launched this site five years ago today, on January 14, 2005, with coverage of the opinions handed down that day by the Supreme Court of Virginia. That first day’s postings are still available in the archives, and in looking back at that essay, I can see how my analysis has changed as I’ve learned a great deal over the years. The site’s reading audience has changed, too. Back in January 2005, I must have had a good, solid twenty hits in a day. Nowadays I average around 4,000, and close to triple that number on opinion days. Here are a few thoughts as I look forward to the next five years.
In 2005 I hoped this web site would provide a forum in which lawyers could get the latest news from the appellate courts with a very quick turnaround, complete with practice tips based on the newest decisions. As I perceived it, there were generally four ways in which most lawyers learned about new appellate decisions. The most energetic ones faithfully read the case summaries in Virginia Lawyers Weekly, and downloaded copies of the slip opinions that interested them. That gave them the information a bit over a week after the rulings. Those lawyers who were not quite so prompt might read the advance sheets when they arrived, a month or two afterward. A third group would learn about the cases at CLE presentations, especially those focusing on recent developments. The fourth group, less foresightful, might find out about new caselaw by having it cited against them by their opponents in the course of a hearing. (Ouch.)
I conceived the idea of getting the news to my readers immediately – the same day, if possible. I figured there’s a big difference between a lawyer who can call his client and tell him about a new appellate ruling from two weeks ago, and the same call to discuss a decision issued just a few hours before.
But I also wanted to educate the bar when it came to appellate practice, which many practitioners found hopelessly arcane. This presented a good opportunity to publish some essays to demystify the appellate courts, and help practitioners feel more comfortable there.
Finally, if I wanted my readers to come back for more, I’d better make it enjoyable to read. I know what I like reading, and I emphatically don’t like having to plow through dry material. I resolved to toss in a dose of wit where I could, and even irreverence on occasion. The result is that I enjoy this creative writing project immensely – as I have described it, the best thing about this site for me is that no one edits out my jokes. There’s something to be said for being a dictator.
If I’m failing at any of these objectives, please let me know how I can do a better job. (I am a decidedly benevolent dictator.)
A gratifying response
Nothing else has been quite as valuable to me as receiving feedback from my readers. I sometimes get notes from lawyers telling me that they enjoyed a particular post, or better yet, that they just won a key ruling based on something they read on the site. I occasionally get notes from trial judges who tell me that I make it easier for them to stay current on the latest appellate developments.
One silent compliment will stick with me forever – one of the justices said something nice to me about the site at a bar function, and the devil within me prompted me to say (after I thanked, him, of course), “I’ll bet I write what you’d like to be able to write sometimes.” (In my analysis of a criminal case, I can say, “You’ll never guess what the rocket scientist did next,” but that obviously won’t work in something that’s destined for Virginia Reports.) His response was a knowing smile and a barely-perceptible nod.
Some welcome appellate developments
I have been able to report on some positive trends and events over the past five years. The most encouraging to me is what has been described elsewhere as the rise of an appellate bar here in Virginia. That trend wasn’t caused by this web site, but I like to think that perhaps I helped to nudge it along just a bit. I’m aware that some lawyers and judges think that there is no real difference between the skills required for trial and appellate advocacy, at least to the point that a lawyer can excel at both. I firmly believe that it’s quite difficult to translate trial-court skills into an appellate setting, so I’m happy to see a number of my colleagues decide to speciali- no, wait; the State Bar says we can’t use the S-word – to focus their practices on appellate work.
I’ve also been very pleased to see more discussion of appellate topics on other web sites, as I noted in a recent post outlining the current state of the Virginia appellate blawgosphere. For example, in the past couple of years, Virginia Lawyers Weekly has added a blog that often discusses appellate topics, especially on opinion day, when the paper devotes four staffers to analyzing the most important decisions. These days, there’s no excuse for not knowing right away what the appellate courts are saying.
How about CLE? Back when I started this site, I recounted a story told by Judge Bob Humphreys of the Court of Appeals, in which the court had sanctioned a lawyer for repeated rules violations. The court directed him to attend a CLE program on Virginia appellate practice, but the lawyer returned a few days later and told the court that he couldn’t comply, because there were no such programs offered. Nowadays, it’s much easier to find a quality program geared toward either learning basic skills or sharpening those you already have. The State Bar’s Appellate Practice Committee produces two symposia a year, Virginia CLE reinstated its excellent program on appellate advocacy last year after a five-year hiatus, and it looks as though the highly-successful 2008 Appellate Summit will become a recurring gathering.
Of course, getting appellate training still isn’t as easy as getting CLE credit in, for example, domestic relations, criminal practice, or even ethics. A year or so ago, the Supreme Court sanctioned a lawyer, much as the CAV had done in Judge Humphreys’s story, by requiring him to attend 12 hours of CLE in Virginia appellate practice within six months. When I read that, I realized that the court might just as well have ordered him to bring peace to the Middle East within that time; I know when the appellate programs are offered, and there weren’t 12 hours’ worth on the books then. Still, we’re much better off now than we were at the beginning of 2005.
A new web site feature
You might also have noticed a small improvement to the site, up in the right-hand corner, in response to suggestions I’ve heard – the site is now searchable, including the home page and everything in the archives. Now, if you want to know what I wrote about a given decision, you don’t have to go back and find the date of its release and then hunt through the archives to find my analysis of that date’s cases; you can just enter the name or any other search term (it’s not case-sensitive) and get all of my commentary on it. After five years, my slightly-educated wild guess is that I’ve posted something like a million words of commentary – opinion days alone routinely generate 10-12,000 words – so it’s time to make things a little more user-friendly. Please let me know if you find this feature useful and functional; if there are any bugs in it, I want to get those taken care of promptly.
I’ve toyed with the idea of taking the archived material, organizing it, and placing it into a book so you can take it with you if you want. The current method isn’t quite as portable, unless you have one of those neato mobile phones that include a web browser. (I have one now; it’s my first smart phone, but it’s still smarter than I am, so I am probably criminally underutilizing it.) I’ll stick with this format for now.
I still have no plans to charge a subscription fee or to insert advertising. This is designed to be a free site, and while I won’t make long-term promises, I intend to keep it that way for the foreseeable future.
I plan to keep this up as long as I enjoy it, which I emphatically do right now. Unless I get hit by a meteor, I’ll be around for more analysis for the long haul, starting with tomorrow’s opinion day from the Supreme Court. See you then.